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United States v. Gomez-Zapata

United States District Court, N.D. Alabama, Middle Division

July 3, 2018




         At the beginning, the court believed this was an opportunity to chime in on the continuing debate over the setting of conditions of release under the Bail Reform Act, 18 U.S.C. § 3141 et seq., for a defendant against who an ICE detainer has been lodged when the defendant is charged with illegal reentry under 8 U.S.C. § 1326. Courts take two basic approaches. Some courts, including this one, have reasoned that a fundamental and essential purpose of conditions of release under the Act is to reasonably assure the “appearance” of the defendant to answer the criminal charge, and that, if releasing a defendant on conditions has the inevitable effect of causing the defendant's non-appearance due to his deportation, there are no conditions available under the Act that can be set and detention is required. See, e.g., United States v. Ramirez-Hernandez, 910 F.Supp.3d 1155 (N.D. Iowa 2012); United States v. Lozano, No. 1:09-cr-158-WKW, 2009 WL 30522979 (M.D. Ala.) aff'd on supplemental grounds by district judge, 2009 WL 38349081 (M.D.Ala. Nov. 16, 2009); United States v. Castro-Inzunza, No. 3:11-cr-418-MA, 2012 WL 1952652 (D.Or. May 30, 2012). Other courts have held that the “risk of non-appearance” must involve some intentional or volitional act by the defendant and that a defendant's involuntary deportation from the United States is not the defendant's fault and should not be considered as a basis for denying him release under the Bail Reform Act. See, e.g., United States v. Barrera-Omana, 638 F.Supp.2d 1108 (D. Minn. 2009); United States v. Trujillo-Alvarez, 900 F.Supp.2d 1167 (D. Or. 2012); United States v. Lizardi-Maldonado, 275 F.Supp.3d 1284, 1299 (D. Utah 2017). The court originally thought this case was an opportunity to re-examine its own views and those of other courts on these issues, but as explained below, it is not an appropriate case.

         The defendant, Mr. Gomez-Zapata, is a citizen of Mexico who is the subject of a final order of removal under which he was previously removed from the United States in 2007. On May 21, 2018, he again came to the attention of Immigration and Customs Enforcement (“ICE”) officers when he was arrested by the Dekalb County Sheriffs' Department for possession of a prohibited beverage.[1]After confirming his identity from fingerprints, the defendant was turned over to ICE, where he remained for about a month before the government charged him in a complaint with illegally reentering the country without permission, in violation of 8 U.S.C § 1326.

         The defendant made his initial appearance on June 21, 2018, at which the government moved for Mr. Gomez-Zapata's detention under the Bail Reform Act. The defendant was brought to court and delivered to the Marshals Service by ICE agents the morning of his initial appearance. Despite surrendering custody of the defendant to the Marshals Service, ICE now has lodged a detainer for his return. The court conducted a preliminary hearing and detention hearing under 18 U.S.C. § 3142 on June 25, 2018. At the conclusion of the hearing, and without opposition, the government requested until June 29, 2018, to file additional authorities in support of the defendant's detention, which the court granted. Both the government and the defendant filed additional briefs, which have been considered by the court. (Docs. 7, 8).

         According to the pretrial services report tendered by both parties, Mr. Gomez-Zapata attended primary school in Mexico, where his parents still reside today. He has five siblings living the United States, and he has been living with his sister in Albertville, Alabama. Prior to his arrest, he had worked for two months at a manufacturing plant building wooden pallets. There is no indication that Mr. Gomez-Zapata has a wife or children in either Mexico or the United States. His only criminal conviction is for a misdemeanor driving under the influence, which occurred in 2006.

         Notwithstanding the diverging lines of cases mentioned above, this is not an appropriate case for the court to explore the tension between the Bail Reform Act and the Immigration and Nationality Act. A resolution of that tension is necessary only if it would make a difference in whether Mr. Gomez-Zapata would be entitled to the setting of conditions of release as opposed to detention under the Bail Reform Act. Stated another way, the court is required to address the tension between the Bail Reform Act and the Immigration and Naturalization Act only if, disregarding the ICE detainer against him, the defendant would be entitled to release under the terms of the Bail Reform Act. At the end of the day, even discounting the ICE detainer and likelihood of removal, the defendant is not a proper candidate for release on bond.

         At the outset, the offense charged against Mr. Gomez-Zapata carries no presumption of detention. See United States v. Ramirez-Hernandez, 910 F.Supp.3d 1155, 1157 (N.D. Iowa 2012). This means that the court must look to the factors enumerated at 18 U.S.C. § 3142(g) to make the predictive assessment of the defendant's risk of non-appearance or danger. The Bail Reform Act requires an assessment of whether he should be detained pursuant to a balancing of the factors delineated in § 3142(g). That provision states:

(g) Factors to be considered. The judicial officer shall, in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, take into account the available information concerning
(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of section 1591, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including
(A) the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release. In considering the conditions of release described in subsection (c)(1)(B)(xi) or (c)(1)(B)(xii) of this section, the judicial officer may upon his own motion, or shall upon the motion of the Government, conduct an inquiry into the source of the property to be designated for potential forfeiture or offered as collateral to secure a bond, and shall decline to accept the designation, or the use ...

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